Wednesday, December 04, 2013

Tenth's First Discussion of Descamps Results in Divided Panel

U.S. v. Armendariz-Perez, 2013 WL 6130673 (11/22/13) (Col.) (unpub'd) - A divided 10th affirms a USSG § 2L1.2 Texas burglary-of-a-dwelling 16-level enhancement, but suggests an interpretation of Descamps that could really help our clients in the categorical-approach world. Without any objection from defense counsel, the district court imposed the enhancement based on the defendant's Texas conviction for burglary of a habitation. Texas' definition of "habitation" includes structures "appurtenant to" a residence or dwelling, including unenclosed structures, sheds, detached garages and other buildings not intended for overnight accommodation.. On appeal the defendant initially argued the modified categorical approach applied, he submitted the applicable state documents to the 10th [they were not before the d. ct.] and noted the documents did not indicate whether he had been convicted of burglarizing a dwelling or an appurtenant structure. So, he contended, the government hadn't proved the conviction was for burglary of a dwelling. After Descamps, the defendant argued the Texas statute is not divisible and the modified categorical approach does not apply, meaning he was not convicted of burglary of a dwelling, but rather of burglary of a dwelling and appurtenances, a category too broad to qualify for an enhancement.

The 10th first rejected the government's argument that any error was invited. Although the plea agreement indicated the prior conviction was for a crime of violence, it also indicated the defendant was subject to a 12-level enhancement and that the government would later decide if the conviction was for a crime of violence. This ambiguity prevented a finding of an intentional waiver. Plain error review applied. But any error, the 10th ruled, was not plain. Oddly, the 10th relies in part on the defense's failure to dispute the crime-of-violence characterization, not alerting the district court to the error, as a reason for the lack of plain error. The 10th also finds any error not plain because no circuit court has ever ruled a district court erred in holding a violation of the Texas statute to be a crime of violence. Troublingly, the 10th finds other circuit courts' analysis of other state burglary statutes to be immaterial, apparently no matter how similar those statutes might be to the Texas statute. But, most importantly and on the promising side, the 10th strongly suggests Descamps means the Texas statute is indivisible and so can never be a crime of violence under § 2L1.2. The 10th uses its conclusion in this regard against the defendant here, saying that, in light of Descamps, the district court couldn't be faulted for failing to apply the modified categorical approach, as the defendant initially suggested the district court should have done.

The dissent by our newest 10th Circuit judge, Judge Phillips, takes the opposite tack. He says U.S. v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012) held that the Texas statute was divisible and therefore the modified categorical approach applies. Appurtenant structures could be structures that are not dwellings under the dwelling definition of U.S. v. Rivera-Oros, 590 F.3d 1123 (10th Cir. 2009). Since the Shepard documents did not prove the defendant necessarily was convicted of burglary of a dwelling, the district court committed plain error. The judge disagrees with the majority's interpretation of Descamps, which, according to the judge, doesn't preclude finding the Texas statute divisible. In any event, the judge points out that even under the majority's interpretation of Descamps the defendant is entitled to relief. Does all of this give us hope that Judge Phillips might be an independent voice? Stay tuned.